- Associated Press - Monday, November 8, 2010

WASHINGTON (AP) — The Supreme Court has turned down the first preliminary challenge to President Obama’s health care overhaul.

The decision Monday to reject an appeal from a former Republican state lawmaker in California was no surprise because a federal appeals court has yet to consider the case. The high court almost never reviews cases before the issues have been aired in lower courts.

Of more significance is the sign that all the justices took part in rejecting the appeal. New Justice Elena Kagan refused to say during her confirmation hearings whether she would take part in the court’s deliberations over the health care law. Justice Kagan was Mr. Obama’s solicitor general before joining the court.

The court has noted Justice Kagan’s absence in more than two dozen other cases, suggesting that she voted on the health care appeal.

Justice Kagan has stepped aside from cases in which she was involved as a Justice Department official before joining the court.

Justice Clarence Thomas also apparently voted on the case. Some critics have called on Justice Thomas to step aside from the health care cases because his wife, Virginia Thomas, has been an outspoken opponent of the law in her role as founder of the conservative advocacy group Liberty Central.

The case is Baldwin v. Sebelius, 10-369.

 

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